Saturday, January 2, 2010

I was inclined to greet news that a Nebraska federal judge issued an order enjoining the state from enforcing part of its new sex offender law with good cheer. "Finally," I thought, "a judge with the sense to see through the madness of these new laws." But then I read the decision, and I am now inclined to view United States District Court Judge Richard Kopf's decision as yet another road to Hell. This one is not even paved with good intentions.

The plaintiffs sought to bar Nebraska from enforcing harsh new requirements for the registration and monitoring of so-called sex offenders. State lawmakers approved new legislation to go into effect on January 1, 2010, as a means of retaining federal funding under the so-called Adam Walsh Child Protection and Safety Act of 2006, codified at 42 U.S.C. Section 16912. The act, known as SORNA to insiders, aspires to create a new national sex offender registry.

Nebraska did what all good states do when the feds threaten to turn off the spigot of free cash: it amended its laws to please federal paymasters. There's nothing unlawful about this, mind you. Constitutional lawyers don't regard this as the assertion of a federal police power, a notion anathema to the very concept of federalism. No, we maintain the police fiction that cash-strapped states are free to say no to generous federal funding: States that don't want to eat Uncle Sam's carrots are free to walk away.

But Nebraska did more than SORNA required. The state also enacted requirements not found in SORNA: namely, it required sex offenders who are not on parole or probation to sign consent forms permitting the state to search and seize their personal computers at will. It also barred non-supervised registrants from participating on social networking sites on which minors might appear.

The plaintiffs in the Nebraska action, who include the mother of a so-called offender, and an attorney who employs a so-called offender, sought to enjoin Nebraska from enforcing the law, and they filed papers in mid-December to block enforcement. On December 30, Judge Kopf issued an order upholding all aspects of the new Nebraska law except the provisions requiring unsupervised registrants to consent to searches of their computers and the barring them from participating on social networking sites.

The thinking goes something like this: Once an offender is not on probation or parole, he is free, and therefore the state cannot resitrict his Fourth Amendment right to be free from unreasonable searches and seizures. Neither can the state impede the right to free association and speech. I have news for you: Those rights will evaporate for sex offenders unless something changes.

Judge Kopf's decision is troubling for those who care about civil liberties.

The federal courts have long since concluded that registration is not punishment, a view that only a life-time appointee who must never look for a job, seek a place to live or worry about random knocks on the door by vigilantes can maintain. This repulsive abandonment of reason justifies registration by saying it is a mere regulatory requirement incident to conviction of certain offenses. Thus, it violates no constitutional right to be required to register, even without a particularized showing of harm. Let's just round up this new class of niggers and put them on a libidinal plantation.

Judge Kopf notes this line of cases and then concludes, somewhat paradoxically, that it is all right to require registration, a mere incident to conviction, but it is not all right to require registrants also to consent to random searches or stay off social networking sites. Don't get me wrong, I am relieved to see this constitutional line drawn. But my sense of the current climate of hysteria among lawmakers and judges is that this constitutional line will also be erased: what's a few random searches in the name of public safety if the folks were searching are already on the registry? And do we really want Uncle Ernie fiddling about on Facebook? You know the answer in terms of popular prejudice; it won't take long for the simpering class on the bench to fall into line.

And Judge Kopf is a cheerleader for the simpering class.

"In a democracy," he writes, "we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, '[i]f the people want to go to Hell, I will help them. It's my job.' Let's get at it."

It does not help that Judge Kopf cites Oliver Wendell Holmes for this eviscerated vision of a federal judge's role. Sure, the judge is literate, but to what end: cowardice? May I remind Judge Kolb that the judiciary is independent for a reason, and that the Bill of Rights was also enacted for a reason: Those reasons are common, Judge. To place certain things off bounds when lawmakers are moved by passion: that is what we refer to by the notion of checks and balances. Your job, Judge, is not to hide behind a black robe and then lose yourself in the bellowing mass of idiocy any legislative body can conceive in the dark of night. We expect more of a federal judge that passing the buck.

The Nebraska decision is a disgrace: A federal judge dancing glibly to Hell, and then all but laughing about it. Sad. Tragic. And worse, a sign of things to come. Reading between the lines, the judge is really sending a signal to Congress: Amend SORNA to do whatever you like, because, in the end, I will lack the courage to do anything at all to protect the rights of our new pariahs!